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Calcutta High Court
Shib Prosad Chaudhuri vs Yakai Pali on 14 March, 1906
Equivalent citations: (1906) ILR 33 Cal 601
Author: M A Ormond
Bench: Mitra, Ormond


Mitra and Ormond, JJ.

1. These are appeals in suits instituted by the same plaintiffs against different defendants for recovery of sums of money payable on account of rents of agricultural lands held by the defendants and of fishery rents with respect to a. julkar.

2. The defendants were long in occupation of the agricultural holdings. It appears from the judgment of the Lower Appellate Court that they claimed the right of fishing in a certain bed called Sukna bed as a right appurtenant to their holdings, that the landlords, who are the assignors of the plaintiffs, attempted to lease out the beel to a stranger of the name of Debi Charan Sircar, and in order to avoid disputes with such a lessee of the beel, the defendants in each of these cases agreed to pay fishery rents in addition to the rents of their agricultural holdings to prevent the landlords losing fishery rent. The case of the plaintiffs is that the defendants agreed to pay one anna for each rupee of rents of the agricultural holdings. These are suits for consolidated amounts, including the rents of agricultural holdings and the amounts contracted to be paid on account of the fishery.

3. The Munsiff came to a conclusion, which is practically in favour of the plaintiffs. On appeal, however, the learned District Judge has held that the suits so far as they related to rents of the agricultural holdings were maintainable, but so far as they related to the fishery they were not maintainable, as the claims for fishery rents could not be united with suits for rents of agricultural holdings. The learned Judge has given decrees for agricultural rents only.

4. The main contention before us relates to the rents with respect to the fishery; and it has been argued that notwithstanding that different sorts of claims were united, the Court of the Munsiff, in which the suits were instituted, was competent to deal with them.

5. Assuming that the claims in these suits were based on really different causes of action, the plaintiffs were entitled to relief, if the claims could be joined against the defendants in each suit and if the Court Lad jurisdiction. Such cases are covered by Section 45 of the Code of Civil Procedure, which says: “Subject to the rules contained in Chapter II and in Section 44, the plaintiff may unite in the same suit several causes of action against the same defendant, or the same defendants jointly; and any plaintiffs having – causes of action, in which they are jointly interested against the same defendant, or the same defendants, jointly may unite such causes of action in the same suit.” The union, therefore, of two causes of action in each of these oases does not necessarily vitiate the plaintiffs’ claims and the Lower Court was in our opinion wrong in holding that the suits so far as they related to rents of the fishery were not maintainable along with the suits for rents of agricultural holdings. We find no bar in law.

6. The learned vakil for the respondents has urged that suits for fishery rents are not maintainable in the ordinary Civil Courts; and as these suits are below five hundred rupees in value they could not be entertained in the Court of the Munsiff, but were entertain-able in Courts of Small Causes.

7. Suits for rent of fisheries or any dues with respect to them are, however, cognizable under the Bengal Tenancy Act, and the procedure applicable to suits for recovery of arrears of rents of agricultural holdings is applicable to suits for rents of fisheries. Section 193 of the Bengal Tenancy Act expressly applies to suits for recovery of anything payable or deliverable in respect of any rights of pasturage, forest rights, rights over fisheries and the like. This section reproduces the provisions of Clause (4) of Section 23 of Act X of 1859, under which the Collectors Had exclusive jurisdiction to entertain suits for arrears of rent. Suits for fishery rents were under Clause (4) of Section 23 of Act X of 1859 entertainable and exclusively entertainable in the Revenue Courts. We therefore do not see why a suit for the rent of a fishery is not entertainable in ordinary Civil Courts, which have jurisdiction in rent suits.

8. Reference has been made to the Second Schedule of the Provincial Small Cause Court Act as showing that suits for fishery rents are not cognizable by the Ordinary Civil Courts. But Clause (8) of the schedule lays down that a suit for recovery of rent other than of houserent is cognizable in the Ordinary Civil Courts. Ordinary rent suits are not therefore cognizable by Courts constituted under the Provincial Small Cause Court Act. Land covered with water is as much land within the definition of the word as land not covered with water. There is also nothing in the definition of the word “rent” in the Bengal Tenancy Act, which excludes fishery rent.

9. We are of opinion that the Lower Appellate Court is wrong in holding that the suits so far as they relate to fishery rents are not cognizable by ordinary Courts of Civil Jurisdiction. As we have said, the causes of action might be different in one sense, but they could be united and they were united in the plaints in these suits.

10. We do not also agree in the view that the causes of action are different. By contract the rents were consolidated, the tenants agreeing to pay consolidated sums. We do not see how conveniently the claims could be separated.

11. The learned vakil for the respondent has next urged that claims for fishery rent could not be united with claims for other rents on the ground that Section 65 and Chapter XIV of the Bengal Tenancy Act are not applicable to suits for fishery rents. It may well be that the plaintiffs will not be entitled to recover the amounts of the decrees, which they may obtain in these suits in the same way as decrees for rent of agricultural holdings. In fact according to the plaints in these cases the claims could not be treated as claims for rent of agricultural holdings alone, which constitute charges under Section 65 of the Act on the holdings themselves. The union of a cause of action, which is separable from a charge on land, with a claim which constitutes a charge disentitles the plaintiff from pursuing the procedure laid down in Chapter XII of the Bengal Tenancy Act. But we are not now concerned with the mode of realization of the decrees, which may be passed in these suits. The question is, Are the plaintiffs entitled to obtain decrees in these suits?

12. It is now settled law in this Province that a decree-holder in a suit for rent is entitled to proceed not only under Chapter XIV of the Bengal Tenancy Act, but also under the ordinary procedure relating to execution as laid down in the Code of Civil Procedure. The plaintiffs are entitled to proceed under the ordinary execution procedure as laid down in the Code, and the jurisdiction of the Court to entertain suits cannot be defeated, simply because the procedure in execution may be different from the procedure, which is ordinarily followed in rent suits.

13. The learned vakil for the respondent has urged two other grounds with reference to the claims in these suits. They are, first that one of the Plaintiffs’ assignors not having applied for registration of his name under Section 16 of the Bengal Tenancy Act the suits are not maintainable; and secondly, that one of the assignors is a minor and the deed executed by him is not valid.

14. These points were raised in the first Court and were decided against the defendants. It does not appear that they were urged before the Lower Appellate Court, and we cannot allow them here without findings of fact necessary to support them.

15. We accordingly direct that these cases should go back to the Lower Appellate Count for the determination of the question of the rents payable to the plaintiffs with reference to the “fisheries. The plaintiffs, if they succeed in proving the facts on which they have relied, will be entitled to get decrees for consolidated rents.

16. The costs of these appeals will abide the result.

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